In his opening remarks at the beginning of the review process for Brett
Kavanaugh's nomination before the Senate Judiciary Committee, Senator Ben Sasse
(R Nebraska) gave a lengthy speech about the nature of the Senate's role in
judicial appointments, and the ways in which the system had been corrupted. He
lamented that though the Congress "is supposed
to be the center of our politics," because it had ceded much of its
authority to the Executive (short-circuiting the potential for real political
debate), "the Supreme Court is increasingly a substitute political
battleground." According to Sasse, this state of affairs "is not
healthy, but it is what happens and it’s something our founders wouldn’t be
able to make any sense of."
Sasse's proposed solution to this
problem was the restoration of integrity to the judicial nominating process:
So, the question before us today
is not what did Brett Kavanaugh think 11 years ago on some policy matter, the
question before us is whether or not he has the temperament and the
character to take his policy views and his political preferences and put them
in a box marked irrelevant and set it aside every morning when he puts on
the black robe.
The question is, does he have
the character and temperament to do that. If you don’t think he does,
vote no. But, if you think he does, stop the charades. Because at the end of
the day I think all of us know that Brett Kavanaugh understands his job isn’t
to re-write laws as he wishes they were. He understands that he’s not being
interviewed to be a super legislator. H
e understands that his job isn’t to seek
popularity. His job is to be fair and dispassionate.
Sasse's remarks
went viral in social media. They have been widely admired in conservative
circles for their erudition, logical clarity, and rhetorical power. Few could
deny that his analysis of the politicization of the Court is sound, and his
proposed remedies are at least plausible. Unfortunately for Brett Kavanaugh, if
we take Senator Sasse's standards as a guide, the Judge's performance before
the Senate Judiciary Committee during testimony on Thursday (September 27) disqualified
him from service on the Supreme Court.
To be clear, in making this assertion, I am not weighing in on the guilt or
innocence of Judge Kavanaugh with respect to the allegations made by Dr.
Christine Blasey Ford. Though I find her a much more credible witness than him
(given his obvious falsehoods in Senate testimony), the facts of the
allegations remain disputable. But in the course of his testimony on Thursday,
Judge Kavanaugh behaved and expressed himself in a way that precludes effective
service as a Supreme Court Justice, declaring:
This whole two-week effort has been a calculated
and orchestrated political hit, fueled with apparent pent-up anger about
President Trump and the 2016 election, fear that has been unfairly stoked about
my judicial record, revenge on behalf of the Clintons and millions of dollars
in money from outside left-wing opposition groups.
No
judicial nominee in the history of the Supreme Court has ever made remarks that
were so blatantly partisan. The bitter perspective expressed here was the
antithesis of "dispassionate," the ill logic that underpins these
remarks is the opposite of "fair." Brett Kavanaugh has ruined his
potential to serve those ends by defining his public persona in such overtly
partisan form. If Brett Kavanaugh is confirmed to the Supreme Court, he will
join it as someone who has openly declared that he has an acrimonious grievance
against one political party and is beholden to its opponents for their
support.
One might
object that, if Kavanaugh is in fact innocent of the allegations brought
against him, his angry grievance is organic and flows spontaneously from the
assault on his person and his family. To ask him to ignore the attack on his
character, so this line of reasoning goes, would be to insist that he maintain
a ridiculous fiction. Why should he be expected to pretend that a political hit
is not a political hit? There are two problems with this argument.
The first stems from
the fact of what is at stake in Kavanaugh's confirmation. He is on the brink of
being confirmed to a lifetime appointment to one of the most powerful positions
in our government, asking him to retain a demeanor of partisan neutrality, even
in the midst and as the target of a very acrimonious political fight, is not
too much to ask. The nation is divided on a host of issues, including
that of Kavanaugh's fitness to serve. Demonizing those who oppose his
nomination (however much just cause he might have to privately resent the
actions and suspect the motives of some, and however vitriolic some might have
been in their attacks on him) undermines his credibility as a neutral arbiter
with respect to all of the other questions over which Americans are at
odds.
But even if one
reject the idea that partisanship itself disqualifies Kavanaugh, the
blatantly biased nature of his remarks fatally undermines his credibility as an
honest "referee." In this regard, the revealing flaw in Kavanaugh's
indictment of his opponents and of Ben Sasse's critique of the judicial review
process more generally are one and the same. In listing the motives for the
Democrats to indulge in a "political hit," Judge Kavenaugh omitted
the most proximal and obvious: the Republican Senate's refusal to grant a hearing
to Judge Merrick Garland after he was nominated by President Obama in 2016.
That, in combination with the Senate's elimination of the judicial filibuster
in 2017, stripped the Democratic caucus of virtually all leverage in the
process of judicial selection, thus super-heating the climate of partisan
rancor surrounding Kavanaugh's confirmation hearings.
If we grant that
Kavanaugh should be allowed to acknowledge the partisan atmosphere in which he
is operating, then it must also be right to insist that he be "fair and
dispassionate" in assessing its causes. Assigning sole blame to the
Democrats in this regard is ridiculous. Why would Kavanaugh fail to acknowledge
that Republicans share at least some responsibility for the acrimonious
nature of his confirmation hearings, except out of concern for his own
reputation and ambition or out of deference to the sensitivities of his
Republican patrons in the Senate and White House? Either way, his partiality in
this regard fatally undermines any notion of his capacity for fairness in the
eyes of at least half the electorate.
In the final
analysis, both Senator Sasse and Judge Kavanaugh were being deeply disingenuous
(and/or hypocritical), the former in laying down his test for a judicial
nominee and the latter in making the remarks by which he failed that test. If,
as Ben Sasse claims, the Senate is solely tasked with asking whether a
candidate can be "fair and dispassionate" in judging the law, how
could Sasse justify the GOP's treatment of Merrick Garland? Can anyone doubt
that Garland, a jurist who had risen to the highest levels of the federal
judiciary in 20 years of service (earning the praise of numerous GOP lawmakers
along the way), demonstrated enough capacity for "fair and
dispassionate" jurisprudence to at least merit a hearing before the
Senate?
The GOP broke all precedent and refused to give Merrick Garland a hearing for
the same reason that some Democratic senators leveled vitriol at Brett
Kavanaugh: out of a partisan impulse to influence the balance of the Court. For
either Ben Sasse or Brett Kavanaugh to pretend that the Democrats are villains
while the GOP are a study in virtue in that regard is ridiculous.
Acrimonious judicial nominations did not begin with Robert Bork. Richard Nixon
had two SCOTUS nominations fail for many of the same reasons that undermined
the nomination of Judge Bork, and the ugliness of Democratic rhetoric deployed
by senators like Ted Kennedy in the Bork case had ample precedent in the antics
of Republicans like Strom Thurmond with respect to more liberal justices.
Political considerations have always inflected Senate deliberations surrounding
judicial nominees, that fact did not start being true during the Reagan
era.
While
politics has always played into the process of judicial selection, any
dispassionate observer can see that the politics surrounding court appointments
have become progressively more partisan and acrimonious in recent decades. This
has happened for a number of reasons, the most obvious of which is the
polarization surrounding the abortion issue and Roe v. Wade. No one, however,
can reasonably argue that a single party is to blame for this incremental
slide, either with regard to the process as a whole or in any individual case
that has contributed to it.
Moreover, the system itself accounts for the political nature of the judicial
appointments process in the constitutional safeguards surrounding it, which are
themselves political. Ben Sasse himself alluded to this fact when he
noted that Congress, in the exercise of its duty, ideally "stands before
the people and suffers the consequences and gets to back to our own Mount Vernon, if
that’s what the electors decide." The constitution gives the Senate powers
of "advice and consent" precisely because its members will be subject
to the sanction of the voters in the wake of reviewing judicial appointments.
Even if we grant Sasse's assertion that the Senate is solely charged with
asking whether a duly nominated judge has the capacity to be "fair and
impartial," it is ridiculous to assert that refusing to ask the question
at all gives voters the same opportunity to review their representative's
performance as the occasion of a Senate hearing. The GOP caucus did not refuse
to grant Merrick Garland a hearing because he was clearly unqualified, but
because a hearing would have shown him to be qualified, and the political cost
of failing to confirm him in the wake of a hearing would have been too
high.
Ben
Sasse and Brett Kavanaugh have accused many Democrats of deploying unseemly and
deceptive rhetoric in the review of the present Supreme Court nomination, and
they are no doubt right. However credible Dr. Ford's allegations are, some of
the most extreme claims made by Democrats regarding Judge Kavanaugh violate
reason (though whether or not any of them amount to an orchestrated
"political hit" is dubious). But the mendacity of the Democrats is at
least done openly, is accountable for individually, and is thus fully subject
to the sanction of the voters. It is thus no more cynical, blameworthy, or
corrosive of the integrity of the nominating process than the craven collective
silence of the GOP in the face of Merrick Garland's nomination. For Ben Sasse
to suggest otherwise is damaging to his public credibility. For Brett Kavanaugh
to do so is fatal to his fitness for service on the Supreme Court, as it
undermines any notion that he could "take his policy views and his
political preferences and put them in a box marked irrelevant and set it
aside every morning when he puts on the black robe."
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